United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION
R.
STAN BAKER UNITED STATES MAGISTRATE JUDGE
Petitioner
Mark Raymond Ford (“Ford”), who is currently
incarcerated at the Federal Correctional Institution in
Jesup, Georgia, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed
a Response. (Doc. 10.) For the reasons which follow, the
Court DISMISSES AS MOOT Ford's Motion
for Extension of Time to File a Reply, (doc. 11).
Additionally, I RECOMMEND that the Court
DISMISS Ford's Section 2241 Petition,
DIRECT the Clerk of Court to
CLOSE this case, and DENY
Ford in forma pauperis status on appeal.
BACKGROUND
Ford
was convicted in the United States District Court for the
Middle District of Florida of conspiracy to possess with
intent to distribute cocaine base in violation of 21 U.S.C.
§ 846; two counts of possession with intent to
distribute cocaine base and cocaine in violation of 21 U.S.C.
§ 841 (a)(1)(2); and possession of firearms and
ammunition by a convicted felon in violation of 18 U.S.C.
§ 922(a)(2). (Doc. 10-1, pp. 1, 6.) On September 28,
1999, the Middle District of Florida sentenced Ford to a term
of life imprisonment. (Id.) Ford filed a Notice of
Appeal to the Court of Appeals for the Eleventh Circuit,
(doc. 10-2, p. 28), and the Eleventh Circuit affirmed his
conviction and sentence (id. at p. 31.)
On May
21, 2003, Ford filed an Amended Motion, pursuant to 28 U.S.C.
§ 2255, in the Middle District of Florida attacking his
conviction and sentence. (Id. at pp. 53-56.) The
district court denied Ford's Section 2255 Motion, and the
Eleventh Circuit subsequently denied Ford's Motion for
Certificate of Appealability. (Id. at p. 56.)
Having
been rejected by his sentencing court and the Eleventh
Circuit, Ford now turns to this Court to attack his sentence.
In the instant Section 2241 Petition, Ford claims that he is
being “illegally detained.” (Doc. 1, p. 6.) He
contends that the sentencing court's judgment of
commitment did not properly specify separate sentences for
each count of his conviction and that, therefore, his
sentence “is vague and void.” (Id.) Ford
also, without cognizable explanation, contends that the
Federal Bureau of Prisons (“BOP”) has engaged in
rulemaking. (Id. at p. 8.) As relief, Ford asks this
Court to order that he be released from detention.
(Id. at p. 9.)
Respondent
argues that the Court should dismiss Ford's Petition
because he does not satisfy the requirements of the 28 U.S.C.
§ 2255(e) “saving clause” in light of the
Eleventh Circuit's decision in McCarthan v. Dir. of
Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081
(11th Cir. 2017). (Doc. 10.)
DISCUSSION
I.
Whether Ford can Proceed Pursuant to Section 2241
Section
2241 habeas corpus petitions “are generally reserved
for challenges to the execution of a sentence or the nature
of confinement, not the validity of the sentence itself or
the fact of confinement.” Vieux v. Warden, 616
Fed.Appx. 891, 896 (11th Cir. 2015) (internal punctuation and
citation omitted). Ordinarily, an action in which an
individual seeks to collaterally attack “the validity
of a federal sentence must be brought under § 2255,
” in the district of conviction. 28 U.S.C. §
2255(a); Turner v. Warden Coleman FCI (Medium), 709
F.3d 1328, 1333 (11th Cir. 2013). To utilize Section 2241 to
attack the validity of a federal sentence or conviction, a
petitioner must show that the remedy afforded under Section
2255 is “inadequate or ineffective”. Taylor
v. Warden, FCI Marianna, 557 Fed.Appx. 911, 913 (11th
Cir. 2014); Turner, 709 F.3d at 1333 (noting the
petitioner bears the burden of establishing that the remedy
under Section 2255 was inadequate or ineffective to test the
legality of his detention). A motion to vacate covers only
challenges to the validity of a sentence, but the saving
clause and a petition for a writ of habeas corpus cover
challenges to the execution of a sentence. Cf. Antonelli
v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351 n.1 (11th
Cir. 2008) (“It is well-settled that a § 2255
motion to vacate is a separate and distinct remedy from
habeas corpus proper. . . . A prisoner in custody pursuant to
a federal court judgment may proceed under § 2241 only
when he raises claims outside the scope of § 2255(a),
that is, claims concerning execution of his sentence.”)
(internal citations omitted)); United States v.
Flores, 616 F.2d 840, 842 (5th Cir. 1980) (“[The
prisoner's] appropriate remedy is under § 2255, not
28 U.S.C. § 2241, since the alleged errors occurred at
or prior to sentencing.”).
An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that
the remedy by motion is inadequate or ineffective to test the
legality of his detention.
28 U.S.C. § 2255(e) (emphasis added). The
above-emphasized portion of Section 2255(e) is referred to as
the “saving clause.” “Section 2255(e) makes
clear that a motion to vacate is the exclusive mechanism for
a federal prisoner to seek collateral relief unless he can
satisfy” the saving clause. McCarthan v. Dir. of
Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081
(11th Cir. 2017).
After
McCarthan, to determine whether a prisoner satisfies
the saving clause, a court need only analyze “whether
the motion to vacate is an adequate procedure to test the
prisoner's claim.” Id. at 1086. To answer
this question, a court should “ask whether the prisoner
would have been permitted to bring that claim in a motion to
vacate. In other words, a prisoner has a meaningful
opportunity to test his claim whenever section 2255 can
provide him a remedy.” Id. at 1086-87. In
short, when reviewing a Section 2241 petition, courts should
look to whether the petitioner's claim is of a kind that
is “cognizable” under Section 2255. If so, the
petitioner cannot meet the “saving clause” and
cannot proceed under Section 2241. To be sure, “[t]he
remedy [afforded] by [a Section 2255] motion is not
ineffective unless the procedure it provides is incapable of
adjudicating the claim.” Id. at 1088. Whether
the petitioner could obtain relief under Section 2255 is not
relevant to the McCarthan test. Thus, the
“remedy” that must be “inadequate or
ineffective” to trigger the saving clause is “the
available process-not substantive relief.” Id.
at 1086.
“Allowing
a prisoner with a claim that is cognizable in a motion to
vacate to access the saving clause nullifies the procedural
hurdles of section 2255[.]” Id. at 1090. For
example, “[t]he mere fact that such a [§ 2255
motion] is procedurally barred by § 2255's statute
of limitations or restriction on second or successive motions
does not make it inadequate or ineffective.”
Id. at 1091 (“A federal prisoner has one year
to move to vacate his sentence under section 2255. But when a
prisoner uses the saving clause to bring a claim that is
cognizable in a motion to vacate, he bypasses his statute of
limitations and gains limitless time to press claims that
prisoners who meet the requirements of section 2255 do not
receive.”); Body v. Taylor, No.
1:15-CV-00311-AKK, 2015 WL 1910328, at *6 (N.D. Ala. Apr. 27,
2015), appeal dismissed, (Oct. 28, 2015) (quoting
Wofford, 177 F.3d at 1245 (Cox, J., concurring
specially) (“I also agree that the remedy by motion
under § 2255 is not rendered ‘inadequate or
ineffective' because an individual is procedurally barred
from filing a second or successive § 2255
motion.”); United ...